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Jurisdiction and Choice of Law for Non-Contractual Obligations – Part I

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Jurisdiction and Choice of Law for Non-Contractual Obligations – Part I 62nd REGULAR SESSION OAS/Ser. Q March 10-21, 2003 CJI/doc.122/03 Rio de Janeiro, Brazil 12 March 2003 Original: English *Limited JURISDICTION AND CHOICE OF LAW FOR NON-CONTRACTUAL OBLIGATIONS – PART I: HEMISPHERIC APPROACHES TO JURISDICTION AND APPLICABLE LAW FOR NON- CONTRACTUAL CIVIL LIABILITY (presented by Carlos Manuel Vázquez) On May 1, 2002, the Permanent Council “instructed the Inter-American Juridical Committee to examine the documentation on the topic regarding the applicable law and competency of international jurisdiction with respect to extracontractual civil liability, bearing in mind the guidelines set out in CIDIP-VI/RES.7/02,” and “to issue a report on the subject, drawing up recommendations and possible solutions, all of which are to be presented to the Permanent Council as soon as practicable, for its consideration and determination of future steps.”1 The Juridical Committee designated as rapporteurs of this topic Committee members Ana Elizabeth Villalta Vizcarra and Carlos Manuel Vázquez. Both rapporteurs presented preliminary studies on the topic at the 61st Regular Session of the Committee in August 2002. These studies discussed some of the choice of law and jurisdictional approaches taken by OAS member states in cases of non-contractual liability, identified preliminary considerations regarding the desirability of pursuing negotiation of an Inter-American instrument addressing this subject, and outlined an agenda for further research necessary to enable Committee to develop recommendations for the Permanent Council.2 On the basis of the rapportuers’ reports, the Committee at its 61st Regular Session adopted a resolution providing guidelines for the completion of this mandate. The Committee’s resolution provided, inter alia, that the rapporteur’s report should include “an enumeration of the specific categories of obligations that are encompassed within the broad category of ‘non- 1 Permanent Council Resolution, Assignment to the Inter-American Juridical Committee of the CIDIP Topic Regarding the Applicable Law and Competency of International Jurisdiction with Respect to Non-contractual Civil Liability, May 1, 2002, OEA/Ser.G CP/RES.815 (1318/02), available at http://www.oas.org/consejo/resolutions/res815.htm. 2 See Carlos M. Vázquez, The Desirability of Pursuing the Negotiation of an Inter-American Instrument on Choice of Law and Competency of Interstateal Jurisdiction With Respect to Non-Contractual Liability: A Framework for Analysis and Agenda for Research, OEA/Ser.Q CJI/doc.104/02 rev.2, Aug. 23, 2002; A.E. Villalta, Propuesta de Recomendaciones y de Posibles Soluciones al Tema Relativo a la Ley Aplicable y Competencia de la Jurisdicción Internacional Con Respecto a la Responsabilidad Civil Extra-Contractual. Study Prepared for August 2002 Meeting of Inter-American Juridical Committee. 2 contractual obligations,’” as well as a “survey [of] the approaches to jurisdiction and choice of law currently being employed in the hemisphere in the field on non-contractual liability.” The Resolution stated that the report “should consider as well the past and ongoing efforts of global, regional, and subregional organizations that have sought, and in some cases continue to seek, conflict of laws solutions in this field.” In pursuance of this mandate, the rapporteurs divided the work between them. Dr. Villalta’s report examines the past and ongoing efforts of global, regional, and subregional organizations on this topic. This report enumerates the forms of non- contractual liability currently recognized in this Hemisphere and surveys the approaches currently being followed by the nations of the Hemisphere in determining jurisdiction and applicable law in suits seeking to impose non-contractual liability. Part I enumerates the major theories of non-contractual liability and compares them across the common and civil law systems. Part II surveys the major approaches taken in the Hemisphere to issues of choice of law in cases of non-contractual liability. Part III surveys the major approaches taken in the Hemisphere in determining the existence of jurisdiction in cases of non-contractual liability. I. THE RECOGNIZED FORMS OF NON-CONTRACTUAL CIVIL LIABILITY IN THE HEMIPSHERE In its Resolution No. 50 (LXI-O/02) of Aug. 23, 2002, the Juridical Committee resolved that the report prepared by the rapporteurs of this topic for presentation at the Committee’s 62d session “include an enumeration of the specific categories of obligations that are encompassed within the broad category of ‘non-contractual obligations.’ Such an analysis will serve to illustrate the enormous breadth and variety of obligations that an Inter-American instrument on jurisdiction and choice of law in this field could potentially affect.” 3 This section of this report provides such an enumeration. The enumeration demonstrates that the field of non-contractual liability is very broad indeed, including a wide variety of disparate types of liability. The term “non-contractual liability covers literally all forms of liability that are not based on a contract, including but not limited to all forms of torts, quasi-contracts, delicts, quasi-delicts, and all liability arising under statutes that create private rights of action. (Although the term literally also includes liability of private individuals to the state, I have excluded that form of liability from the scope of this report on the assumption that the mandate to the Committee was not intended to reach that far.) Chart I at the end of this section confirms the wide range of theories of non-contractual liability that can be found in the national and subnational laws in both 3 Applicable Law and Competency of International Jurisdiction with Respect to Non-contractual Civil Liability, OEA/Ser.Q CJI/RES.50 (LXI-O/02), Aug. 23, 2002. 3 common and civil law jurisdictions of the Hemisphere.4 These theories are set forth in domestic legal codes and statutes, case-law, and treaties.5 At a general level, the nature of tort and illicit act liability in the civil and common law jurisdictions of the Hemisphere is similar. Both systems premise liability of this kind upon an act or omission that constitutes the breach of a legal duty.6 In common law jurisdictions tort liability typically arises from a tortious act that is either intentional or negligent, or from an act subject to strict liability.7 Similarly, in civil law jurisdictions such liability typically arises from an illegal act (hecho ilícito in Spanish or ato ilícito in Portuguese) which is either a delict (delito) – defined as an act committed with intent to harm – or as a quasi-delict (quasi-delito) – defined as an act committed without harmful intent,8 or from an act subject to responsabilidad objetiva – defined as liability that does not require proof of fault, but rather only proof of damage and causation.9 The term “non-contractual liability” also embraces numerous forms of liability not generally regarded as traditional torts – such as liability for infringement of copyright and patents as well as for discrimination based on race, gender and other impermissible classifications. Moreover, new technologies (such as the internet and genetic testing) and new scourges (such as AIDS) have required the extension of traditional torts into new contexts or the fashioning of wholly new bases of liability. 4 The common law jurisdictions covered are Antigua & Barbuda, Bahamas, Barbados, Belize*, Canada (excl. Quebec), Dominica, Grenada, Guyana, Jamaica, St. Vincent & Grenadines, St. Kitts & Nevis, St. Lucia, Trinidad & Tobago, and the United States (excl. Louisiana and Puerto Rico). The civil law jurisdictions covered are Louisiana (U.S.)*, Puerto Rico (U.S.)*, Quebec (Canada), Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Peru, Paraguay, Suriname, Venezuela, and Uruguay. However, jurisdictions noted with a * have been classified as both common and civil law. 5 Among the major treaties providing substantive liability rules are the Chicago Convention on Civil Aviation, the Convention on the Liability of Operators of Nuclear Ships 1962, Brussels, May 25, 1962, reprinted in 57 Am. J. Int’l L. 268 (as of 1997 not yet entered into force); the Convention on International Liability for Damage Caused by Space Objects; the Convention on Third Party Liability in the Field of Nuclear Energy 1960, Paris, July 29, 1960, U.K.T.S. 1968 & Supplementary Convention 1963, 2 I.L.M. 685; the Geneva Convention on Indemnification for Workplace Accidents; the Geneva Convention on Indemnification for Workplace Accidents in the Agricultural Sector; the International Convention on Civil Liability for Oil Pollution Damage 1969, Brussels, Nov. 29, 1969, 9 I.L.M. 45 & Protocols; the International Convention for the Establishment of An International Fund for Compensation for Oil Pollution Damage 1971, Brussels, Dec. 18, 1971; the Paris Convention on Third Party Liability in the Field of Nuclear Energy, July 29, 1960, 956 U.N.T.S. 251 (as amended by 1964 Protocol), (entered into force Apr. 1, 1968), reprinted in 55 AM.J.INT'L L. 1082 (1961), amended by the Brussels Supplementary Convention, Jan. 31, 1963, 1041 U.N.T.S. 358 (as amended by 1964 Protocol) (entered into force Dec. 4, 1974); the Vienna Convention on Civil Liability for Nuclear Damage, May 21, 1963, 1063 U.N.T.S. 265 (entered into force Nov. 12, 1977), reprinted in 2 I.L.M. 727 (1963); and the Warsaw Convention for the Unification of Certain Rules Relating to International Carriage By Air, 137 L.N.T.S. 11. 6 In some cases liability is premised on harm or prejudice rather than breach of a duty. See ARTURO VALENCIA ZEA, DERECHO CIVIL, VOL. III, DE LAS OBLIGACIONES 201 (1974) (citing definition of illicit act in Colombian law); see also C.C. of Guatemala , art. 1648 (shifting burden of proof upon showing of injury to defendant to prove no fault). 7 See generally WILLIAM PROSSER, JOHN W. WADE & VICTOR E.
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